Malawi Law Society Says EU Report Risked Inciting Public Unrest

9 January 2020

Malawi Law Society has said the release of the now shelved European Union (EU) Election Observer Mission (EOM) final report of the observation of the May 21 2019 Tripartite Elections in Malawi could have incited violence in the event that the mission's findings were contrary to expectations of some quarters and the Constitutional Court judgement does not support the same.

Chigondongo Mhango: EU observer election team miscalculated on report release

Currently, a five-judge panel of the High Court of Malawi sitting as the Constitutional Court is working on its decision in a case where UTM Part president Saulos Chilima (first petitioner) and Malawi Congress Party (MCP0) president Lazarus Chakwera (second petitioner) are challenging the declaration of President Peter Mutharika of Democratic Progressive Party (DPP), who is the first respondent, as winner of the presidential race declared by the second respondent Malawi Electoral Commission (MEC).

In its letter addressed to the EU-EOM head of delegation but under the attention of Aurelie Valtat, who is EU deputy head of mission and head of the political and media office in Malawi, the lawyers body said regardless of the content of the report, it was bad timing to present it before court ruling.

MLS president Burton Chigondongo Mhango said in the letter that it was insentive for EU-EOM to present the report as the mission was aware of the violatile situation prevailing post May 21 2019 polls.

The letter, copied to President Mutharika, Chilima, Chakwera and MEC chairperson Jane Ansah, states that releasing the report " risks falling foul of the subjudice rule" and playing as" a catalyst to potential public unrest."

This is the same argument which was raised by Chilima, who declined to meet the the team citing legal principle of subjudice given that litigation is in progress, hence, the planned presentation would tantamount to "extra-judicial gimmick' to meddle with the process.

"We trust that the Observer Mission is aware of a Constitutional court case between Dr. Saulos Klaus Chilima and Dr. Lazarus Chakwera vs Professor Arthur Muthalika and the Electoral Commission, Constitutional Referral Number 1 of 2019.," reads the letter in part.

"As you may be aware, dispute resolution is a final part of an electoral process. That case is now at an advanced stage and judgement is awaited with bated breath and significant public interest across the nation.

"It is expected that in line with its duty of independence and impartiality the judiciary will carefully manage the litigation before it and the Court will determine the issues in accordance with the law as against the relevant facts and that the people of Malawi will abide by the due process set out in their laws," MLS letter reads.

The Malawi Law Society said it considers that in the event that EU-EOM report indicates findings that are contrary to the expectations of some quarters and/or the judgment of the Court does not support the findings of the Observer Mission, "there is potential that this might incite violence."

It adds: "The society believes that the Observer Mission or indeed the European Union would not want to be associated with any failure to promote rule of law at any point in time."

Several commentators have also faulted the timing of the EU-EOM report which the EU Malawi office described as "normal".

The commentators have since applauded EU-EOM for eating a humble pie and resolving to shelve the release of its qualitative report on the disputed report.

Social- commentator Stanely Onjezani Kenani on his Facebook page said coming with the report now was "akin to poking Malawians in the eye."

Kenani said it is "great" that EU-EOM "listened" not to present the report now.

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